European Court of Justice defines the scope of Database Directive protection to exclude obtaining, verifying or presenting data

The European Court of Justice interpreted and clarified the scope of the sui generis right (a custom-made legislation) in database as provided for in the Directive 96/9/EC – Legal Protection of Databases as excluding football fixture lists or horseracing lists from protection on November 9, 2004 in four similar matters.Fixtures Marketing licenses fixture lists for the top English and Scottish football leagues outside the UK on behalf of the professional football leagues. The organizers of the leagues create the fixture lists at the start of each season store them electronically and print them in booklets. The lists take into account factors like, the need to ensure the alternation of home and away matches, the need to ensure that several clubs from the same town are not playing at home on the same day, the constraints arising in connection with international fixtures, whether other public events are taking place and the availability of policing. Various companies organize pool betting in their countries namely, Finland, Sweden and Greece, by using data relating to matches in the English & Scottish football leagues without obtaining a license from Fixtures Marketing.

The British Horseracing Board (BHB) organizes horse races in Britain and compiles its database of detailed information about thoroughbred horses in the UK. William Hill Organisation offers, apart from traditional betting fora like licensed betting offices and telephone betting, betting over the internet for all major horse races in the UK. It displays information on its website from newspapers and from a subscription based information service which in turn obtains its information from BHB database. Such information covers only a tiny part of the whole of the BHB database and is arranged in a different way.

Both Fixtures Marketing and BHB brought an action for violation of their right in the database as conferred by the Directive 96/9/EC for Legal Protection of Databases. The domestic courts of UK, Finland, Sweden and Greece refer to the European Court of Justice for a preliminary ruling on the subject matter and the scope of sui generis right provided for by the directive.

The Directive provides a system of protection for database in Art 7, which permits Member States to “provide for a right for the maker of a database which shows that there has been qualitatively and / or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and / or re-utilisation of the whole or of a substantial part, evaluated qualitatively and / or quantitatively of the contents of that database”.

The court interpreted Article 7 to promote and protect investment in data storage and processing systems which contribute to the development of an information market.

The phrase, ‘investment in … obtaining, verification or presentation of the contents’ of a database generally refers to investment in the creation of that database. The aim of the sui generis right is to safeguard financial and professional investment in obtaining and collecting the contents of a database. It does not protect the resources used for the creation of materials which go into the database. The purpose is to promote the establishment of storage and processing systems for existing information and not the creation of materials capable of being collected subsequently in a database.

The expression ‘investment in … the … verification of the contents’ refers to the resources used to ensure the reliability of the information contained in that database, to monitor the accuracy of the materials collected when the database was created and during its operation. The resources used for verification during the stage of creation of materials which are subsequently collected in a database do not fall within the definition.

The expression ‘investment in … the … presentation of the contents’ concerns for its part, the resources used to give the database its processing function, that is the systematic or methodical arrangement of the materials contained in that database and the organisation of their individual accessibility.

In essence, this means that the creator of a database who is also the creator of the materials contained in it is entitled to claim protection if he can show substantial investment, whether quantitative or qualitative, in the obtaining, verifying or presenting the contents of the database and not in creating the contents of the database.

The fact that the contents of the database were made accessible to the public by its maker or with his consent does not affect the right of the maker to prevent acts of extraction and / or re-utilisation of the whole or a substantial part of the contents of a database. The provision prohibits unauthorized acts of extraction or re-utilisation which reconstitute and / or make available to the public without the authorization of the maker of the database the whole or a substantial part of the contents of that database and thereby seriously prejudice the investment by the maker.

The football fixture list and a horseracing list are “databases”, but finding and collecting data which comprises the list does not require any particular effort on the part of the professional leagues as the leagues are responsible for the organisation of the sports. Obtaining the football fixture or horse racing list did not require any investment independent of that required for the creation of the data contained in such lists. Even the verification of the accuracy of the contents if fixture lists during the season does not entail substantial investment. Similarly, the presentation of the lists are also closely linked to the creation as such of the data which make up the list and does not require investment independent of the investment in the creation of its constituent data. Therefore, the databases in question were not protected under the Database Directive.

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